California Senate Passes Unconstitutional Law?

SB 1303: RED LIGHT CAMERAS (2012)

“This bill is designed to establish some ground rules around the use of red-light cameras, and make sure that drivers’ rights are protected,” Simitian said.

The Press Release on Senator Simitian’s Website reads as follows:

Senate Bill 1303 protects drivers’ rights by:

• Requiring that camera locations be chosen because of safety considerations, and not on their potential to generate revenue;
• Requiring cities and counties to follow state standards in the placement and operation of cameras;
• Requiring adequate signs to notify drivers when red-light cameras are in use;
• Prohibiting so called “snitch tickets” (i.e., an innocent ticket recipient may not be required to identify another driver in order to clear an inaccurate ticket); and
• Making it easier for a wrongfully ticketed driver to get a ticket cleared.

Simitian’s deceptive tactic of not revealing the major aspects of his Bill in his press release demonstrates that he has an unknown ulterior motive for enacting the law which will change evidentiary law and allow what is unacceptable hearsay evidence in every other legal circumstance to be used by the government for the enforcement of citations issued by automated traffic enforcement systems.

Currently Sections 1552 and 1553 of California’s Evidence Code regarding computer data and video or digital images do not apply to automated traffic enforcement systems.

These sections set a standard of presumption that any digital recording is accurate unless challenged by an apposing party. In such a case the burden of establishing the accuracy of the recordings by a preponderance of evidence falls on the introducing PARTY. SB 1303 includes automated traffic enforcement systems.

Section (3) of SB 1303 expressly states that, “..The bill would expressly state that the printed representation of computer-generated information, video, or photographic images stored by an automated traffic enforcement system does not constitute an out-of-court hearsay statement by a declarant.”

What this means is that the digital images acquired by an automated traffic enforcement systems would not require any person to testify that the images are accurate and authentic representations of what they claim to purport denying defendants the opportunity to confront and question their accusers unless the defendant submitted evidence him/herself that questioned the authenticity of the images.

This is a clear violation of the SIXTH Amendment of the U.S. Constitution which states, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

In the City of Menlo Park, CA employees of Redflex operates an automated traffic enforcement system, in which Redflex employees obtain and submit photographic images/evidence to the Palo Alto Police of motorists who have allegedly violated a vehicle code which are then forwarded back to Redflex whereupon Redflex sends a citation to the accused motorist and the Courts for prosecution.

The videos of automated security cameras that capture people, including police officers, committing crimes are used all the time as evidence:

For the above videos to be accepted as evidence, the people who operated the cameras and obtained the videos must submit that evidence in open court to be confronted by the accused.

Simitian’s legislation does not require that Redflex employees testify in person whereupon they can be confronted with cross-examination by the accused which flies in the face of the U.S. Supreme Court’s rulings and position.

SUPREME COURT OF THE UNITED STATES

CRAWFORD v. WASHINGTON

CERTIORARI TO THE SUPREME COURT OF WASHINGTON

No. 02—9410.Argued November 10, 2003–Decided March 8, 2004

Held: The State’s use of Sylvia’s statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Pp. 5—33.

A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.Id.,at 54.

SUPREME COURT OF THE UNITED STATES

MELENDEZ-DIAZ v. MASSACHUSETTS

certiorari to the appeals court of massachusetts

Argued November 10, 2008—Decided June 25, 200 No. 07–591.

Held: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him. Pp. 3-23.

Confrontation Clause(of the 6th Amendment),…commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. … Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”541 U. S., at 61-62.

“Confrontation is designed to weed out no only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. ‘[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics,’ Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006).. Respondent and the dissent may be right that there are other ways and in some cases better ways-to challenge or verify the results of forensic tests. But the Constitution guarantees one way: confrontation.”

The submission of technical data and analysis as in MELENDEZ-DIAZ v. MASSACHUSETTS case is analogous to submitting digital images and computer print from automated traffic enforcement systems. The U.S. Supreme Court has already ruled that the person[s] submitting affidavits/evidence/testimony must do so in person to allow confrontation by the accused.

Simitian turns the justice system upside down. Camera’s are not witnesses that provide testimony. Videos are not witnesses that provide testimony. Camera’s and videos are evidence that can be submitted to the court upon the testimony of a witness. By asserting that no one need testify, Simitian is essentially stating that the Camera itself is the witness providing testimony and citing motorists.

When compared to the fine of the offense of running a red-light, it would be financially prohibitive to any accused motorist to come up with expert analysis and testimony to prove the images have been adulterated. This financial barrier prevents accused motorists from challenging potentially fraudulently incriminating images.

When an officer issues a ticket in person and testifies in person the accused has a fundamentally fair opportunity to defend him/herself against false accusations and representations made by the officer.

It is a fundamentally unfair advantage to the government and private enterprises that earn a profit from the sale and service, of automated red light camera systems to use images from said systems to incriminate citizens of a crime while not providing equal adversarial analysis to counter the images provided by Reflex and the government. This unfair advantage is a violation of the 5th and 14th Amendments Due Process Clause and the 14th Amendment’s Equal Protection Clause since the accused is not being provided with equal protection.

“Unfortunately, in order for a motorist to be cited for an infraction, it would have to be witnessed by an officer. No, I don’t mean witnessed via video or digital camera, but live,”CHP Public Information Officer Art Montiel said.

Officer Montiel then cited California Penal Codes 836. (a) (1) and 19.7 which state that a peace officer can only arrest a person for a misdemeanor and or cite a person for an infraction when the offense has been committed in the officer’s presence.

According to Menlo Park’s Red Light Camera Procedures, an officer does not witness the red light violations.

As pointed out, it is an employee from Redflex who is doing all of the work of obtaining the images and citing motorists for the City of Menlo Park even though an officer signs off on the citation after reviewing the images. The Officer has up to 10 days to view the images after the incident was recorded.

The current law 21455.5 of the California Vehicle Code and Senator Simitian’s proposed SB 1303 which allows Cities to erect and use red light camera systems contradict California Penal Codes California Penal Codes 836. (a) (1) and 19.7 and is therefore a violation of 14th Amendment’s Due Process Clause.

When asked what the difference is between an employee of Redflex, (who may not even be a U.S. Citizen), and any other person providing the Menlo Park Police with images and digital documentation of vehicle violations Menlo Park Police Sergeant Sharon Kaufman replied by stating, “Whether citizen or company, all laws applicable to operate and/or run a program must be met.”

Sgt. Kaufman deftly avoids answering the question by providing an answer that does not address the question.

At it’s core, Senator Simitian’s 1303 Bill is allowing some companies, some people and the police to submit hearsay evidence to the court in violation of existing law while denying the same right to all other citizens which is a violation of Article 1 Section 7. (b) of the California Constitution which states, “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”

The contract between the City of Menlo Parkand Redflex states, “Cost neutrality is assured to Customer using this methodology as Customer, (Menlo Park), will never pay Redflex more than cash received.” Pg. 25

“Before any payment is due to Redflex, Customer, (Menlo Park), shall be entitled to recover the sum of $8,500 per month from the gross cash received….” Pg. 25

Thus, to ensure that Redflex obtains its monthly service fee, Redflex has to generate enough tickets to pay the City of Menlo Park up front. If Redflex is not generating enough tickets then it will lose its $6,350 fee per each automated red light system, the number of intersections.

This is a significant conflict of interest in providing testimony to the court.

Should the Court’s deem that the use of hearsay evidence submitted by private companies in association with the government from Red Light Camera Systems is acceptable then the government will have a precedent to use use hearsay evidence in all other forms and circumstances.

Held: The State’s use of Sylvia’s statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Pp. 5—33.

The Clause’s primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class. Second, the Framers, (of the Constitution), would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. Mattoxv.United States,156 U.S. 237, 243. Pp. 5—21.

(b) This Court’s decisions have generally remained faithful to the Confrontation Clause’s original meaning. See,e.g., Mattox, supra.Pp. 21—23.

(d) The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

SUPREME COURT OF THE UNITED STATES

MELENDEZ-DIAZ v. MASSACHUSETTS

certiorari to the appeals court of massachusetts

Argued November 10, 2008—Decided June 25, 200 No. 07–591.

Held: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him. Pp. 3-23.

At petitioner’s state-court drug trial, the prosecution introduced certificates, (affidavits), of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity.

(b) The arguments advanced to avoid this rather straightforward application ofCrawfordare rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in theSixth Amendment’s text or in this Court’s case law.

The argument that the analysts should not be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision inOhiov.Roberts,448 U. S. 56,

“To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. … Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”541 U. S., at 61-62.

“Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant,post,at 10, the same cannot be said of the fraudulent analyst.”

541 U. S., at 51. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.Id.,at 54.

More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence viaex parteaffidavits and waits for the defendant to subpoena the affiants if he chooses.

“This case involves little more than the application of our holding inCrawfordv.Washington,541 U. S. 36. The Sixth Amendment does not permit the prosecution to prove its case viaex parteout-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.”

“Confrontation is designed to weed out no only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. ‘[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics,’ Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006).. Respondent and the dissent may be right that there are otrher ways and in some cases better ways-to challenge or verify the results of forensic tests. But the Constitution guarantees one way: confrontation.”

Originally published on June 2, 2012

Tony Ciampi

Community Field Reporter, Blogster expert in federal criminal law and filings, powered by Google. I won't challenge Tony with a ten foot pole....Be forewarned View all posts by Tony Ciampi →

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14 comments for “California Senate Passes Unconstitutional Law?”

Henry

June 2, 2012 at 8:06 pm

I think I know Joe’s motive.

His “hearsay is OK” amendment was prompted by the fact that two red light camera defendants (Borzakian and Goldsmith) have just gotten the California Supreme Court to agree to a future review of their cases – and the issue in both cases is hearsay. Joe’s bill will save RedFlex a bundle – they won’t have to pay lawyers to brief the two cases at the Supreme Court.

The timing is interesting, too. Joe added the “hearsay is OK” section to his bill last Tuesday, May 29. That was very “last minute,” just 3 days before the deadline for bills to clear the senate. But it was also just 7 days before June 5 when he is up for election for county supervisor. I think that Joe hoped that it would be well after election day before voters found out about the big favor he did for Redflex. But Joe may have overlooked just how fast things get around on the Net.

This editorial is right on the money. SB1303 contains a list of modest but positive changes to the red light camera controls.

BUT, then it received this totally pro-camera amendment to make hearsay evidence virtually impossible to challenge in court. The scamera companies would LOVE this change if it passes, because it will make any challenges in court on the accuracy, calibration, etc. of the equipment almost impossible to mount – even with a good attorney.

If the citizen cannot force a camera employee to testify under oath in open court on the truth and accuracy of the photo record, then the court will accept the hearsay record as fact – regardless of how faulty it may be.

The scamera companies and their business-partner cities could use faulty equipment, poorly serviced, poorly calibrated, and perhaps even deliberately made inaccurate with little chance the errors in favor of the ticket could be meaningfully challenged in court.

It is a terrible amendment to admit hearsay evidence, snuck in at the last moment, and it needs to be defeated. California residents who care anything at all about fairness in traffic enforcement need to call their Assembly Representatives to demand that either this amendment be removed or the whole bill be defeated.

As has been said many times: Eternal vigilance is the price of liberty.

James Walker’s comment, where it touches on the “hearsay is OK” amendment, is right on the money. (And as I noted in my earlier comment, the amendment IS about money.)

But Walker is wrong when he says the bill makes “positive changes.” The Industry – the same people who have the access to get the “hearsay is OK” amendment added – has thoroughly scoured out any provision that would favor the public. For example:

1. The bill reduces the number of warning signs. A 2010 version of the bill asked for more signs than what’s required at present, but that bill failed to pass and the requirement for more signs was left out of the 2011 (vetoed by Gov. Brown) and 2012 versions of the bill, replaced by the present language providing for fewer signs.

2. Simitian’s May 31 press release, which has been republished almost word for word in many media accounts about SB 1303, claims that the bill prohibits snitch tickets, when in fact no version of this bill has prohibited the fake tickets. An early 2011 version of the bill required that snitch tickets contain a warning to let receipients know that they could ignore the “ticket,” but that provision was removed last August. The present bill merely legitimizes the fakes – it provides a form for cities to use!

3. The bill muddies the 15 day deadline for cities to mail a real ticket.

4. The many “protections” are there to fool Simitian’s constituents into thinking that the Senator is helping them. In reality, the “protections” are toothless and won’t help motorists because the Senator has set no consequence or penalty that is to apply to cities and/or camera companies that violate the protections. In a recent Appellate Division decision in Napa (P. v. Daugherty), the judge summed it up pretty well: “A statute violation does not render evidence inadmissible unless the statute so provides….”

Richard, are you aware that red light cameras cause an increase in accidents at the intersections where they are installed? Supporting anything to do with automated enforcement of red lights shows either ignorance of this fact, or a complete disregard for public safety.

I support safe driving but not at the expense of being denied the right to confront one’s accusers. Surely–Richard Alexander you are not suggesting that the two interests, safe driving and our 6th amendment right to confront our accusers–can’t be reconciled?

I see no reason why the parties responsible for maintaining the red-light camera records should not be required to come to court–when requested by the defendant–to defend, be subject to cross examination–by the defendant ( the one charged with the traffic violation).

Please!!! you and Simitian are both lawyers and can’t be suggesting that we should allow a state traffic ordinance to violate basic concepts of due process and equal protection of the law and to trump at least two U.S. Supreme Court cases ( Crawford & Melendez) that are right on point ( as pointed out by Mr. Tony Ciampi).

It is now common knowledge that so called scientific evidence, once thought to be nearly invincible– is often far from accurate and needs always to be tested in the crucible of cross examination. We can do better than this!!

Thanks for your email. I appreciate hearing from you, and I hope that you’ll continue to be in touch about issues of concern.

As you may know, I represent nearly one million people in 13 cities and towns in Santa Clara, San Mateo, and Santa Cruz counties. Due to the large volume of email we receive, my staff and I may not be able to respond to each message individually. However, please be assured that your email will be read and your views heard.

One of the best parts about representing the 11th District is that my constituents are smart, engaged, and like to stay informed. With that in mind, here are several additional ways to connect with me and my staff:

My Senate website, http://www.senatorsimitian.com, features resources, news from Sacramento, and links to learn about my legislation. You can also stay informed about upcoming events by signing up for occasional email updates.

I have three offices you are welcome to call or visit: one in Palo Alto, one in Santa Cruz, and one in Sacramento. Visit this page for contact information.

I hold “sidewalk office hours” throughout the summer in my district, where I talk to constituents one-on-one with no appointments necessary. For those who prefer more in-depth conversation, I host Town Hall and Education Update meetings. This page lists my upcoming local events.

Once again, thank you for taking the time to contact me. I hope you’ll stay in touch.

You have hit the nail on the head. I spent 25 years in the courtrooms of this county representing indigent clients against criminal charges.

Without a robust 6th Amendment–including the right to fully confront all witnesses and all potential evidence–including of course scientific evidence of all types (including video footage of the alleged crime), I would be unable to live up to my constitutional responsibility to provide each client with a full constitutional defense –zealous advocacy with an undivided loyalty to my client’s cause.

Mr. Simitian’s proposal to deny defendant’s the right to confront and cross-examine the evidence against them-in quasi-criminal matters -would set a terrible precedent and should not be allowed to happen.

Sincerely,

Aram James

P.S. Mr. Joe Simitian –I would be happy to meet with you and Mr. Tony Ciampi at any time to discuss this matter. In preparation for our meeting I would appreciate if you would read Justice Scalia’s majority opinion in Crawford v Washington (2004), as well as Melendez -Diaz v. Massachusetts (2009) -the majority opinion –also written by Justice Scalia. Crawford deals with the general right to confront one’s accusers including hearsay evidence and declarants, etc., and Melendez-Diaz with the more nuanced issue of the right to confront so-called scientific evidence without the state being able to rely on secondary –hearsay evidence. With short notice- before our meeting-I will be fully prepared to discuss both cases. In addition we can discuss the implications of your proposed legislation in light of the Supremacy Clause –the notion that a state is entitled to provide more rights to its citizens then the federal constitution and bill of rights provide– but not less–as I suggest your proposed legislation would do.

Why is there not a petition against this bill circulating? How can more people become aware of this, because it came as a surprise to me that more people don’t know about this. How can Jerry Brown be pressured to veto the bill? Why aren’t people taking their power back from the government when their rights are clearly being taken away from them and their children in the name of GREED?

I read somewhere that there continues to be accidents at red light camera zones because accidents at a red light usally occurs 3 sec after a light changes. I feel there maybe even more now since people have to slam on their brakes (I slam on the brakes at all the red light cameras) in order not to get caught in the red light camera and get that giant fine. Where’s the public safety in that?

I agree wholeheartedly with Just a thought’s comment above, and others for several reasons including because I know from experience and observation the red light cameras definitely do cause more accidents in that “now since people have to slam on their brakes (I slam on the brakes at all the red light cameras) in order not to get caught in the red light camera and get that giant fine. Where’s the public safety in that?”